Judicial Review (STEP 1 and STEP 2) Flashcards
Definition of Judicial Review
the mechanism by which the courts ensure public bodies act within the powers they have been given, and do not exceed nor abuse these powers.
Does C’s claim raise PUBLIC LAW ISSUES?
a. I.e. issues relating to the wider public interest/the relationship between the state and individual
b. Procedural Exclusivity:
i. If claimant is seeking to enforce public law rights, should do so via JR procedure, not ordinary civil procedure (O’Reilly v Mackman) – confirmed in Trim v North Dorset District Council of Nordon
Test for Public Body?
2) Is D a PUBLIC BODY? Apply Datafin 2 part test (R v City Panel on Takevoers ex p Datafin):
a. Test 1: Source of Power: was body set up under statute/delegated legislation?
b. Test 2: Nature of power: does body exercise public law functions? (e.g. granting licenses)
i. [NB. YL v Birmingham CC: a private care home does not]
Where grounds of challenge relate to human rights?
D must be a public authority (s.6 HRA 1998)
Sufficient interest?
s.31(3) Senior Courts Act 1981
R v IRC ex p National Federation of Self-employed
is C directly and adversely affected by matter?
What about sufficient interest of pressure groups?
Ex p World Development Movement: 5 factors:
i. Importance of the matter
ii. Whether anybody is better placed to bring claim
iii. The need to uphold the rule of law
iv. Role of pressure group
v. Relevant statutory duty involved
s.7 HRA 1998
Is C/would C be a victim of the unlawful act? I.e. Consider is C directly affected by the interference?
Is the claimant within the time limit?
a. S.31(6) SCA 1981: court may refuse claim if there’s been “undue delay”
b. Civil Procedure Rule 54.5: C must file claim form promptly within a maximum of 3 months after the ground arose, and without prejudice to any statutory provision which shortens the time limit.
What did R v Stratford-Upon-Avon DC ex p Jackson say about time limit?
(Facts – Council granted planning permission for supermarket. 8 months later Jackson applied for leave to seek JR of the granting of planning permission. She said had to await outcome of request for environment secretary to call matter into consideration; legal aid; obtaining plans from copyright holders. 1st instance dismissed, CA upheld) : Delay may exceed 3 months if C is waiting for legal aid/there is difficulty obtaining evidence/other justified reasons
What if there is a complete ouster clause in provisions/statutory right of appeal?
a. COMPLETE ouster clauses are effectively meaningless (Anisminic v Foreign Compensation Commission)
What about partial ouster clauses?
b. PARTIAL ouster clauses (i.e. Parliament imposing time limits for judicial review claims) will be tolerated by the courts provided they appear reasonable. (Ex p Ostler)
IMPLIED ouster clauses
courts will accept the availability of an alternative statutory right of appeal as an implied ouster clause (Ex p Goldstraw)
Finn-Kelcy v Milton Keynes Borough Council and MK Windfarm [2008]
sought JR against refusal of Admin court to grant wind farm permission, just within 3 months. CA dismissed appeal – no reasoning or delaying issuing proceedings for 10 months
R v Dairy Produce Quota Tribunal, ex p Caswell [1990]
Facts: Caswell was a dairy farmer given wrong milk quota. Was not aware of judicial review until 2 years afterwards. HoL found for him on issue of error of law, but said more than 3 months was an undue delay (s.31(6) SCA 1981)
